HL v HP [2019] ACTSC 299

DAMAGES - Assessment and quantum - General damages - Aggravated damages - Future medical expenses - Sexual assault - Battery

A B v Australian Capital Territory [2018] ACTSC 16

New South Wales v Ibbett [2006] HCA 57; 229 CLR 638

1. On 30 September 2009 the plaintiff was sexually assaulted by the defendant. The assault amounted to a battery for which the plaintiff seeks damages.

2. Although the defendant originally denied liability, on the basis that the plaintiff had consented to the assault, that stance was properly withdrawn, leaving the dispute limited to damages.

3. The plaintiff claims damages under the following heads: General damages, future medical expenses and aggravated damages.

4. The plaintiff was born in 1994. She is the fifth of eight siblings. There is no doubt that she had a troubled upbringing. Her parents, as between each other were abusive and violent. They took drugs and drank too much alcohol. As a result the plaintiff developed an independence at an earlier age than she might have within a secure upbringing.

5. She was however close to her sisters, in particular R, S and J. They are all older than her. She was quite close to her father but not at all close to her mother.

6. The plaintiff's parents separated in 2009. The plaintiff joined her father at her grandmother's residence. This was a difficult time for her grandmother because her husband was dying of cancer.

7. Probably as a result of her unsettled upbringing, by 2009 the plaintiff had developed a number of rebellious habits. In particular, she was frequently "wagging" school and drinking alcohol, although the latter habit may have initially developed as a result of peer pressure. On some occasions she would binge drink.

8. S is six years older than the plaintiff. As at 2009 S had a steady boyfriend, the defendant. He and S lived together at an address in Casey.

9. The plaintiff first met the defendant in about 2004. At that time the plaintiff was still in primary school, aged about 10. The defendant was 17. They got on well although from time to time the plaintiff felt that the defendant was acting inappropriately. For example when playing basketball he allowed his 'private parts' to rub against the plaintiff. He also made unseemly comments about sexual matters. Nevertheless, the plaintiff came to trust the defendant and a good rapport developed between them.

10. On 30 September 2009 the plaintiff asked the defendant to purchase alcohol for her. She intended to take the alcohol, or some of it, to a party on the forthcoming weekend. The defendant agreed to the request, but only on condition that the plaintiff joined him in the purchasing exercise.

11. At about midday the defendant picked up the plaintiff. They purchased the alcohol, and some extra, in Gungahlin. The defendant then said that he needed to go to his home before he would drop the plaintiff at her home.

12. After arriving at the defendant's address in Casey the defendant offered the plaintiff a drink and they sat on the couch. They had some alcohol and were playing a video game called Mortal Kombat. This game is a fight 'to the death'. The defendant suggested that the loser of each round would drink a shot of absinthe. The plaintiff agreed and, pursuant to the side game, she consumed two or three shots.

13. The defendant then put on a pornographic movie and embraced the plaintiff. He left the room and came back without his trousers. He put his penis into the plaintiff's mouth and after a short time pulled her pants off. He then continued with oral sex and then switched to penile vaginal sex. The plaintiff felt sick and went to the bathroom where she vomited. The defendant brought her some water.

14. During the sexual assault the plaintiff had asked "what about S?". The defendant had replied "I still love her".

15. The defendant then drove the plaintiff home, via a McDonald's restaurant. On the journey he told the plaintiff that she could not disclose what had occurred because it would destroy his relationship with S and he could go to prison.

16. The next day the defendant telephoned the plaintiff and enquired about her contraception status. She said that she was not following any contraception regime. The defendant then took her to her general practitioner in Queanbeyan for the prescription of a morning after pill.

17. Shortly afterwards the plaintiff told her best friend about the incident. She told another friend about six months later and a third friend after a further few months.

18. The plaintiff said that for the first few days after the assault she was very upset. She cried herself to sleep and she felt dirty. She decided that if she could not disclose the events then she needed to "push it so far back that it didn't exist".

19. The plaintiff began missing more school and drinking more alcohol. She found it difficult to sleep because she would think about what had happened. She was racked with feelings of shame and guilt. Nevertheless, she tried to give an impression of being happy and in a happy setting.

20. S and the defendant married in 2011. The plaintiff was a bridesmaid and she made a concerted effort to hide her feelings.

21. In 2014 the plaintiff told her sister, R. This sister had always disliked the defendant. A few weeks later the plaintiff told her sister S about the assault. Her sister seemed sympathetic towards her, but after a few weeks days she asked the plaintiff for another meeting. At this meeting S recorded the conversation during which she asked a number of questions suggesting that the plaintiff had consented to the sexual activity.

22. I note again, that it is no part of the defendant's case that the plaintiff was a willing participant in the sexual assault.

23. The plaintiff later told her father who seemed understanding of the position. As might be expected, when the plaintiff's family became aware of the defendant's activity, the dynamics within the family substantially changed.

24. In July 2014 the plaintiff reported the matter to the police. She found this a particularly difficult time because she had to recall, in detail, the events that had occurred.

25. The plaintiff left school at the beginning of Year 12. This meant that she could not pursue her long held desire to become a nurse. She first worked in hospitality, sometimes doing three jobs at a time. She later became a dental assistant but did not get on with the dentist. She moved to another dental surgery where she worked as a receptionist.

26. In 2018 the plaintiff commenced work in the Australian Public Service as an executive assistant. She was initially on a fixed term contract but her position became permanent. She has since been promoted.

27. Following reporting the matter to the police the plaintiff drank more and also started to increase her use of drugs. She suffered flashbacks. She said she has only had one real relationship although there have been some short relationships. She said that her significant relationship had come to an end after she had suffered flashbacks during an intimate encounter. She does not feel comfortable being intimate. In submissions the plaintiff stressed the significance of her inability to enjoy an intimate relationship.

28. The plaintiff said that she feels she has little self-worth and she finds it difficult to connect emotionally. Although she admitted to still going out socially from time to time, she said that social situations created anxiety.

29. The plaintiff said that she had difficulty concentrating and her sleep was now sporadic. She is still close to her sisters R and J but she has no contact with S.

30. During the build up to the criminal case against the defendant the plaintiff started binge eating, followed by vomiting. At first this was a frequent activity but, although it continues, it is at a much reduced level.

31. The thrust of her cross-examination was to paint a picture that the plaintiff's problems were less serious than she asserted and also had different, at least in part, origins than only the sexual assault. The plaintiff accepted that she was already rebellious before the assault and had drunk alcohol, although to a lesser extent.

32. It was not however suggested to Ms Morris, the plaintiff's expert, that the plaintiff's psychological condition might have had a different origin or at least was partly caused by matters other than the assault. I also note that the defendant's expert, although arriving at a different diagnosis, attributes his diagnosis entirely to the assault.

33. In addition, it was put to the plaintiff that she had done quite well, both at a sporting level and an employment level. I agree, as did the plaintiff, with the suggestion. However, her achievements have been as a result of her fortitude and not because of an absence of psychological symptoms.

34. I found the plaintiff to be an impressive witness who did not exaggerate her symptoms and made concessions about her previous problems, where appropriate. I note that Dr Shaikh, the psychiatrist who reported for the defendant, was also of the view that the plaintiff was not feigning any mental disorder or exaggerating the extent of her symptoms (page 7[H] of his report).

35. The plaintiff agreed that in 2016 she had received $50,000 by way of victims' compensation. She had placed this money in a term deposit because she anticipated that her civil litigation would require a significant amount of funds. She agreed that she had not used any of the money for medical treatment. Other than the latter consideration the parties agreed that I should ignore this payment in assessing damages.

36. The plaintiff has seen a psychologist, but she did not continue with the treatment. She also did not continue to take antidepressant medication because she thought that the medication was not "right for me".

37. Two medical reports were tendered. They both identified psychiatric conditions flowing from the sexual assault. The difference between the practitioners relates to the type, number and severity of the conditions.

38. The plaintiff relied upon a report of Ms Morris, a forensic psychologist. According to Ms Morris the plaintiff was suffering from a major depressive disorder, post-traumatic stress disorder and an eating disorder. Dr Shaikh confined his diagnosis to an "adjustment disorder with mixed anxiety and depressed mood".

39. Both experts were cross-examined. Neither expert resiled from their respective positions under cross-examination. I prefer the opinion of Ms Morris. I think it more accords with the history given by the plaintiff and her description of her symptoms. The main difficulty I have with the defendant's report arises from the apparent conclusion that the adjustment disorder only arose in 2014 after the incident was reported to the police. I take this conclusion from the following statement in the report:

It is reasonable to assume that in 2014, post her reporting the incident, and being involved in proceedings thereafter, [H L] experienced symptoms reflective of an adjustment disorder, with mixed anxiety and depressed mood. This diagnosis is appropriate, considering she described relevant symptomatology in response to identifiable stresses, with impairment in functioning.

40. I asked the doctor about this during his oral evidence. He responded that, in effect, the necessary 'ticking of boxes' required by DSM V to reach a diagnosis was not possible while the plaintiff was concealing her symptoms. I do not, however, see why a provisional diagnosis at least could not have been made based on the symptoms she described, notwithstanding that those symptoms were being hidden from an outside observer.

41. These symptoms included guilt, internalising emotions and negative self-thought. The plaintiff made a supreme effort, for the sake of her family, to keep her symptoms from being apparent. This did not mean they did not exist. Almost to the contrary the effort to mask her symptoms might be seen as adding to their eventual aggravation.

42. I initially thought that the defendant's report raised a degree of advocacy on the doctor's part. For example, the words "she claimed to have been subject to sexual assault and intercourse without consent" (emphasis added) ignores the defendant's acceptance of his conduct. The doctor was aware of the plea of guilty and the facts of the case. However, having heard the doctor's oral evidence I am satisfied that is not the case and that he was simply using standard phrases in his description of the history.

43. The real difference between the medical opinions stems from the respective practitioners' assessment of the history that they each received. As already noted, having listened to the plaintiff give evidence, I am satisfied that the history given to Ms Morris better reflects the history of her symptoms and enables me to find that the diagnosis given by Ms Morris is more likely to be accurate.

44. In addition to the diagnosis of post-traumatic stress disorder I also accept Ms Morris's diagnoses of an eating disorder. Dr Shaikh did not entirely differ although he suggested that the disorder may have resolved over time. In my view the plaintiff's description of her continuing binge eating and purging, albeit now at a lesser level, is evidence of the continuation of the disorder, even if categorised as less severe than it once appeared.

45. Although there was no physical harm occasioned to the plaintiff, there was significant psychological damage. The damage has in my view been aggravated by the defendant imposing a ban on disclosure of the information, so that the plaintiff was forced to conceal her emotions for some years. This included the period during which the defendant and S married.

46. The plaintiff has also lost a good deal of the treasured family life she had, in particular with her sister S.

47. The plaintiff should have treatment in the future, although I have some reservations about whether or not she will take up that option. Whatever the case the plaintiff has suffered a significant psychological injury which is likely to last for many years into the future, and probably have a number of permanent manifestations. I accept the evidence of both experts that the conclusion of the legal proceedings will assist the plaintiff's condition.

48. I asked the parties to prepare a schedule of damages. The plaintiff's claim for general damages is $255,000 broken up into a number of different parts. For example loss of personal enjoyment generally is said to be worth $5,000 whereas loss of personal enjoyment in intimate relationships is valued at $20,000 for the past and $80,000 for the future. The breakup of general damages as suggested by the plaintiff is an inappropriate approach to the assessment of these damages. I am unaware of any previous decisions where this approach has been taken.

49. The defendant, somewhat more realistically, assessed general damages at between $70,000 and $80,000. The difficulty however with these figures is that they reflect the diagnosis of an adjustment disorder put forward by the defendant's expert. For the reasons stated above the plaintiff should be treated as having suffered the psychological conditions as described by Ms Morris. In other words, the plaintiff's condition is more serious than that painted by the defendant, so that accordingly, the defendant's range of damages should be seen as, at best, at the lower end of the appropriate range.

50. By way of comparable verdicts, there do not seem to be many in the Australian Capital Territory (ACT). There are a number of decisions in other jurisdictions, and in particular in New South Wales. I think the closest facts to this case, in the ACT, can be found in my decision in A B v Australian Capital Territory [2018] ACTSC 16. In A B the plaintiff was sexually assaulted while a patient in a ward of a public hospital. I found the plaintiff had suffered a post-traumatic stress disorder which would affect her into the future, although her "prognosis is reasonably good".

51. It is not appropriate to engage in a detailed comparison of symptoms. Each case must be decided on its own facts. Suffice to say however that I am of the view that this plaintiff's condition is worse than that of the plaintiff in A B, but not to a significant degree. An important difference is that the assault here was carried out by a, now, family member. Reminders and triggers are likely to be more frequent and continue for a greater length of time.

52. In my view general damages should be assessed at $100,000. I will allow interest on half of the general damages at 2% per annum ($50,000 x 2% x 10 = $10,000).

53. The plaintiff also seeks aggravated damages. In New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [31] the High Court said that:

Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing.

54. I also discussed aggravated damages in A B. I said, at [49]:

Aggravated damages are awarded:

...where the defendant has acted, either in committing the tort or thereafter, with contumelious disregard of the plaintiff's rights, in any insulting or high-handed way or with malice. (Assessment of Damages for Personal Injury and Death, Luntz, 4th Edition at paragraph 1.7.10)

55. The circumstances of the wrongdoing here involve the sexual assault upon a 14 year old girl, by a man some 7 years older than her, against a background of the man being her sister's boyfriend (and future husband) and included a family dynamic which resulted in the plaintiff having to keep the matter hidden, and from the authorities, for some years.

56. The plaintiff submitted that aggravated damages should arise from two matters; firstly the demand imposed upon the plaintiff to not reveal the assault and secondly the assertion, ultimately only withdrawn on the first day of the hearing, that the plaintiff had consented to the assault.

57. I think the instruction to not reveal the assault, in particular knowing the close relationship between the plaintiff and her sister S, was a "contumelious disregard of the plaintiff's rights". I think aggravated damages are justified.

58. I do not however include in my assessment of aggravated damages any amount relating to the 'consent defence'. The pleadings filed by the plaintiff are vague. They are silent, for example, on the identity of the cause of action (battery) which was the basis for the suit. The plaintiff's counsel said this would have been obvious. It may well have been obvious to him. It might not have been obvious to any person attempting to identify with precision the cause of action being pursued.

59. I will however say this: There is no evidence to suggest that the plaintiff consented to the assault against her. This is apparent from the details of the offence as set out in the statement of facts and is reinforced by the plaintiff's evidence both through her oral testimony and as contained in the victim impact statement, and the history provided to Ms Morris.

60. Against this background I assess aggravated damages at $25,000.

61. Turning to future medical expenses, the claim was not properly, if at all, particularised. Initially the defendant objected to the claim but through the course of the hearing changed that position, no doubt because counsel thought the claim could be met. My preparedness to deal with the claim should not be seen as any endorsement of the failure on behalf of the plaintiff to properly give the defendant particulars of her case.

62. Ms Morris said the plaintiff should have fortnightly counselling sessions for three years. This is 78 sessions at $251 per attendance ($19,578). In addition, she envisaged further counselling in years to come when the post-traumatic stress disorder is re-enlivened through triggers that the plaintiff encounters. Dr Shaikh recommended 10 sessions at a cost of $3,000 in total. He accepted that there might be a need for future sessions, again when triggered by relevant circumstances.

63. My acceptance of Ms Morris's diagnoses suggests that I should accept her opinion. However I think her formula, as displayed by her oral evidence, took a somewhat cautious approach which assumed a need for a maximum amount of treatment. I think it also relevant that the plaintiff has not thus far sought continuing treatment, nor has she pursued antidepressant medication. Accordingly, I will take something of a middle ground and assess future medical expenses at $15,000 in total.

64. A summary of the damages I have awarded is contained in this table:

(a) Judgment for the plaintiff in the sum of $150,000.00.

(b) The defendant is to pay the plaintiff's costs of the proceedings.

66. I will hear the parties if any alternative cost order is sought.

I certify that the preceding sixty six [66] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim.

18 November 2019 Replace "Although the plaintiff originally denied liability" with "Although the defendant originally denied liability"